United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527 v. Ontario Hydro, 1998 CanLII 18325

[1998] OLRB REP. MAY/JUNE 456

2947-94-R; 3010-94-R The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, Applicant v. Ontario Hydro, Responding Party v. Power Workers' Union, CUPE Local 1000, Intervenor #1 v. Labourers' International Union of North America, Local 1059, Intervenor #2 v. Electrical Power Systems Construction Association, Intervenor #3; Labourers' International Union of North America, Local 1059, Applicant v. Ontario Hydro, Responding Party v. Electrical Power Systems Construction Association, Intervenor #1 v. Power Workers' Union, CUPE Local 1000, Intervenor #2 v. Ontario Pipe Trades Council and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, Intervenor #3

BEFORE: Lee Shouldice, Vice-Chair, and Board Members W N. Fraser and G. McMenemy.

APPEARANCES: S.B.D. Wahl and S. Morrison for the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527; John Moszynski and Bill Casemore for Labourers' International Union of North America, Local 1059; M. Patrick Moran, R. Currie and N. Donnelly for Ontario Hydro; M. Patrick Moran for Electrical Power Systems Construction Association; J. Monger, C. Dassios and W Campbell for Power Workers' Union, CUPE Local 1000.

DECISION OF THE BOARD; May 1, 1998

I. Introduction

1. The name of the applicant in Board File 2947-94-R is amended to read "The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527", in accordance with section 106 of the Labour Relations Act, R.S.O. 1990, c. L.2 (hereinafter referred to as "the Act").

2. These are applications for certification in the construction industry. The applications were filed with the Board on November 17, 1994, prior to the effective date of the Labour Relations Act, 1995, and therefore are to be determined by reference to the Act. The applicants (hereinafter referred to respectively as "the U.A." and "the Labourers"') have applied under section 146(1) of the Act to represent members of their respective trades in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and in all other sectors of the construction industry in Board Area 3.

3. By way of decision dated July 18, 1997, this panel of the Board resolved certain preliminary issues in favour of the applicants. The applications were scheduled to return before the Board in late 1997 and early 1998 for the litigation of other issues identified in a pre-hearing memorandum prepared by former Vice-Chair Davie dated July 24, 1995. Without going into great detail regarding the events of the latest group of hearing days, a number of those days were devoted towards dealing with certain procedural matters and hearing the representations of the parties regarding the effect of separate agreements reached by the U.A. and the Labourers' with the Power Workers' Union (hereinafter "the P.W.U."). This decision deals with one of those matters, namely the description of the appropriate bargaining unit in each of these applications.

4. Prior to dealing with the merits of the above issue, the Board feels it necessary to note the following. On or about April 29, 1998, at least one of the parties to these proceedings received from the Board what appears to be a decision on the issue dealt with herein. That document is not this decision, but in fact was a draft that had been prepared for internal circulation and discussion only. The document that was received by at least one of the parties was not signed by the Vice-Chair of this panel of the Board and was not intended for external circulation. The Board apparently telefaxed that draft in error. In the circumstances, the Board directs that any party in possession of such a draft destroy it and any copies that may have been created.

II. The Description of the Bargaining Units Claimed to be Appropriate for Collective Bargaining

5. At the outset of these proceedings, both the U.A. and the Labourers' claimed a "standard" ICI bargaining unit, having regard to section 146 of the Act; that is, each claimed, in accordance with the designations made by the Minister of Labour under the Act, a bargaining unit composed of construction labourers and plumbers and plumbers' apprentices and steamfitters and steamfitters' apprentices in the ICI sector of the construction industry, as the case may be, and for those same trades in all other sectors of the construction industry, in Board Area 3, save and except for non-working foremen and those above the rank of non-working foreman. In essence, then, each of the U.A. and Labourers' were looking to represent its customary ICI bargaining unit.

6. As a result of certain 'jurisdictional accords" reached by each of the U.A. and the Labourers' with the P.W.U., the parties to these proceedings have now altered their positions with regard to the description of the appropriate bargaining units. The Labourers' claims that the appropriate bargaining unit in its application is the following:

all construction labourers in the employ of Ontario Hydro in the ICI sector of the construction industry in the Province of Ontario, save and except persons covered by the P.W.U. collective agreement, and all construction labourers in the employ of Ontario Hydro in all other sectors of the construction industry in the counties of Oxford, Perth, Huron, Middiesex, Bruce and Elgin, save and except persons covered by the P.W.U. collective agreement and save and except persons employed under the collective agreement between EPSCA and the OACTC, save and except for non-working foremen and persons above the rank of non-working foreman.

The bargaining unit now requested by the U.A. in its application is the following:

All plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Ontario Hydro:

(a) in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario; and

(b) in all other sectors of the construction industry, save and except the industrial, commercial and institutional sector in the counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin (OLRB Geographic Area 3),

save and except non-working forepersons and persons above the rank of non-working foreperson and persons performing P.W.U. pipefitting work in accordance with the Pipefitting Trade Jurisdiction Appendix "A" attached hereto and paid in accordance with the collective agreement between the P.W.U. and Ontario Hydro.

Clarity Note: For the purpose of clarity, as of the date of application herein, November 17, 1994, persons employed pursuant to the collective agreement in effect between the P.W.U. and Ontario Hydro, performing pipefitting work in accordance with the existing jurisdictional lines of demarcation between the P.W.U. and the U.A. are not within the appropriate bargaining unit.

Specific reference to certain clauses in the 'jurisdictional accords" in question will be made below.

7. Ontario Hydro does not accept that either of the above descriptions of the bargaining unit are appropriate for collective bargaining. With respect to the Labourers' application, it submits that the following unit is appropriate for collective bargaining:

all construction labourers in the employ of Ontario Hydro, in the ICI sector of the construction industry in the Province of Ontario, and in all other sectors of the construction industry in the counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin (OLRB Geographic Area 3), save and except the electrical power systems sector, persons employed pursuant to the collective agreement between the Power Workers' Union and Ontario Hydro performing construction labourers work in accordance with Ontario Hydro's past practice, and non-working foremen and persons above the rank of non-working foreman.

With regard to the U.A. application, Ontario Hydro submits that the appropriate bargaining unit is the following:

all plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Ontario Hydro, in the ICI sector of the construction industry in the Province of Ontario, and in all other sectors of the construction industry in the counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin (OLRB Geographic Area 3), save and except the electrical power systems sector, persons employed pursuant to the collective agreement between the Power Workers' Union and Ontario Hydro performing pipefitting, plumbing and/or steamfitting work in accordance with Ontario Hydro's past practice, and non-working foremen and persons above the rank of non-working foreman.

8. On the consent of all of the parties, the two Memorandums of Agreement which reflect the separate agreements of the U.A. and Labourers' with the P.W.U. were placed before the Board. The agreements are similar but are different in significant ways. Certain provisions of those agreements are pertinent to the disposition of the issue raised for decision before us. The Memorandum of Agreement between the Labourers' and the P.W.U. contains a Jurisdictional Accord which reads, in part, as follows:

1.00(b) It is the intention of the parties that this Accord fairly and reasonably protect the right of members of PWU bargaining units to continue to do the work they did prior to the issuance of any Certificates in OLRB File No. 3010-94-R ("the Certificates").

1.00(c) The purpose of this Accord is to state the jurisdictional agreements between the Labourers and PWU with respect to work performed by or for Ontario Hydro and its successors in the areas to which any Certificate by the OLRB in case number 3010-94-R relates, and to provide a fair and expeditious method of resolving disputes involving jurisdictional claims and differences concerning the interpretation and application of the Accord. This Accord relates only to construction trades work as encompassed by any Certificates issued in Board File No. 3010-94-R or by any Collective Agreements related to the Certificates.

2.02 The parties acknowledge that work at the Bruce Nuclear Power Development and all other Bulk Electric System operating facilities of Ontario Hydro and/or its successors is covered by PWU/Hydro and Labourers/EPSCA Collective Agreements and that work jurisdiction at these facilities is governed by the Chestnut Park Accord and the Inn on the Park Accord. The parties also acknowledge that both PWU members and Labourers' members perform construction industry work for Ontario Hydro in all sectors and that the PWU and Labourers collective agreements, subject to this agreement and the two Accords mentioned above, cover such work.

Paragraph 1 of a subsequently executed addendum to the initial Memorandum of Agreement provides that "as of the Application date herein, November 17, 1994, persons employed pursuant to the Collective Agreement in effect between PWU and Ontario Hydro performing work in accordance with the existing jurisdictional lines of demarcation between the PWU and the Labourers are not within the appropriate bargaining unit".

9. In a similar vein, the relevant provisions of the Memorandum of Agreement between the U.A. and the P.W.U. (and the description of the bargaining unit which the U.A. asserts is appropriate for collective bargaining) make reference to "the Pipefitting Trade Jurisdiction Appendix 'A"'. That

Appendix is critical to the determination of the question before the Board, and is, accordingly, reproduced below in its entirety:

Pipefitting Trade Jurisdiction Agreement

The P.W.U. and the U.A. agree that all non-EPSCA plumbing, pipefitting and steamfitting work (pipefitting work) performed by or for Ontario Hydro and its successors in the areas to which any certificate by the Ontario Labour Relations Board in Case #2947-94-R relate, shall be assigned and performed as follows:

(a) employers, contractors and/or subcontractors, other than Ontario Hydro and its successors, shall assign and perform all construction industry pipefitting work using U.A. tradespersons exclusively.

(b) Ontario Hydro and its successors shall assign and perform all pipefitting work using direct employees as follows:

(i) New Construction shall be assigned and performed as follows:

• new facilities

• new systems

• permanent dismantling/demolition

using U.A. tradespersons exclusively.

(ii) Modifications shall be assigned and performed as follows:

• major modifications using U.A. tradespersons exclusively

• minor modifications using P.W.U. tradespersons exclusively

The threshold separating major modifications from minor modifications shall be a total of 160 pipefitting tradesperson hours per project.

Modifications shall consist of:

• renovations

• additions or extensions to facilities or systems.

(iii) Repair shall be assigned and performed as follows:

• major repair using U.A. tradespersons exclusively

• minor repair using P.W.U. tradespersons exclusively The threshold separating major repair from minor repair shall be a total of 160 pipefitting tradesperson hours per project.

(iv) Service and Maintenance shall be assigned and performed using P.W.U. tradespersons exclusively.

(v) If it is determined pursuant to the collective agreement between the P.W.U. and Ontario Hydro that P.W.U. members will not perform the pipefitting work then such pipefitting work shall be performed by Ontario Hydro using U.A. tradespersons under the terms of the operative U.A. collective agreement.

It was in the context of these provisions of the respective agreements that the Board heard the argument of the parties on the issue of the appropriate bargaining unit. In our view, it is important to briefly outline the argument of the parties on this issue, and we therefore do so, immediately below.

III. Argument of the Parties

10. Counsel for the Labourers' made two specific submissions regarding the appropriateness of the unit submitted by his client. First, with respect to the issue of dealing with the Labourers' existent bargaining rights in the Electrical Power Systems sector of the construction industry, counsel noted that his description of the unit specifically identified the collective agreement which contains those rights. In counsel's view, it is proper to exclude the bargaining rights held by his client under the EPSCAI OACTC collective agreement by making reference to that agreement, rather than by excluding the Electrical Power Systems sector from the scope of the certificate issued in this proceeding. Counsel noted that Ontario Hydro consistently takes the position that the EPSCAIOACTC collective agreement does not cover the entire sector. In light of that position, counsel for the Labourers' submitted that the non-ICI certificate ought to (and, by reference to section 146(1) of the Act, in fact must) encompass all outstanding Electrical Power System sector bargaining rights, and that the only way to effect such a result is to specifically exclude only those rights currently held under the EPSCAIOACTC collective agreement.

11. With regard to the bargaining unit description put forward by Ontario Hydro, counsel for the Labourers' disputed the appropriateness of making reference to "persons employed pursuant to the collective agreement between the Power Workers' Union and the Respondent performing construction labourers work in accordance with the Employer's past practice". In counsel's submission, such wording in the bargaining unit description flies in the face of the Board's long-standing practice to not deal with jurisdictional disputes in certification applications. In effect, the criterion of "employer past practice", typically an important factor in a work assignment dispute, is incorporated into the bargaining unit description, and therefore the certificates issued by the Board.

12. Counsel for the U.A. approached the argument from a different perspective, though he agreed with the Labourers' submissions regarding the need to describe the Electrical Power Systems bargaining rights by reference to the appropriate collective agreement rather than by reference to the sector itself. With respect to the bargaining unit urged as appropriate for collective bargaining in the U.A. application, counsel identified what he described as a "critical" difference between his clients' jurisdictional accord with the P.W.U., and that of the Labourers'; in particular, that the U.A./P.W.U. agreement does not acknowledge that the collective agreement between Ontario Hydro and the P.W.U. covers construction plumbing, pipefitting or steamfitting work. In conjunction with the P.W.U.'s withdrawal of its position that its collective agreement was a bar to the application for certification, this critical fact could only lead the Board to conclude that there is really no need to exclude from the U.A.'s certificates any person working in the P.W.U. bargaining unit, because to do so would be unnecessary, given that none of the bargaining unit work of the P.W.U. would be covered by any certificate issued by the Board to the U.A.

13. That being said, counsel for the U.A. submitted that he felt it was appropriate to exempt certain individuals from the scope of the bargaining unit - namely "persons performing P.W.U. pipefitting work in accordance with the Pipefitting Trade Jurisdiction Appendix 'A'... and paid in accordance with the collective agreement between the P.W.U. and Ontario Hydro". This, he submitted, was quite a different thing than acknowledging that the collective agreement between the P.W.U. and Ontario Hydro covered "construction" work. Counsel submitted that it was appropriate to refer to the Appendix "A" in the bargaining unit description because the U.A. and the P.W.U. had agreed that certain work performed which may affect the construction industry pipefitting work ought to be assigned in accordance with existing jurisdictional lines. Counsel asserted that the assignment reflected by the Pipefitting Trade Jurisdiction Appendix "A" reflected that existing assignment of work.

14. Making reference to the decisions of Alcan Aluminium Limited, [1997] OLRB Rep. May! June 305, Gottcon Contractors Limited, [1990] OLRB Rep. Jan. 25, and Gisborne Design Services Ltd., [1995] OLRB Rep. June 796, counsel submitted that the practice of the Board relating to making reference to a collective agreement in the "save and except" part of a bargaining unit description is to limit such references to situations where the parties agree that the collective agreement in question covers portions of the construction trades that are the primary subject of the certification application. Here, of course, the parties agreed that the collective agreement between the P.W.U. and Ontario Hydro was not a bar to the certification application, and therefore it is unnecessary to make reference to that collective agreement in the U.A.'s bargaining unit.

15. Counsel for the P.W.U. did not entirely agree with the submissions made by counsel for the U.A.. Counsel asserted that its position that the P.W.U. collective agreement did not constitute a bar to the U.A. application for certification was dependent upon a bargaining unit description being utilized which protected and preserved his client's existing work jurisdiction and bargaining rights. In his view, the "save and except" clause in the U.A.'s proposed bargaining unit description satisfies the Board's practice of preserving existing bargaining rights, and recognizes that the P.W.U.'s bargaining rights extends to the kinds of work listed in the appendix itself, some of which "quite likely" could be found to be construction work as the Board typically defines it. However, all of that being said, counsel submitted that the bargaining unit description being put forth by the U.A. was appropriate for collective bargaining in this case.

16. Counsel for Ontario Hydro took issue with a number of the propositions put forward by opposing counsel. With respect to the issue of the exclusion of the electrical power systems sector bargaining rights, counsel submitted that it was more appropriate to exclude those rights by making reference to the sector itself. Counsel acknowledged that, in other proceedings, Ontario Hydro has submitted that the bargaining rights held by the applicants in their respective EPSCA collective agreements did not occupy the entire field of the electrical power systems sector, but submitted that there is a long bargaining history in that sector as between Ontario Hydro and the respective applicants, and that the parties ought to be permitted to bargain any extension in the context of EPSCA collective agreement negotiations, should they so desire.

17. With respect to the bargaining unit proposed by the Labourers', counsel for Ontario Hydro noted that because it did not specifically reference the jurisdictional accord reached between the Labourers' and the P.W.U., the description was consistent in many ways with that proposed by Ontario Hydro. Counsel noted that his client's proposed unit (unlike that of the Labourers') made reference to the prior practice of Ontario Hydro, and acknowledged that such a reference could well lead to a few disagreements between the parties. However, such a result was preferable to the alternative, which was the possibility that the Labourers' and the P.W.U. would, through their jurisdictional accord, usurp the right of management to assign work as it considers appropriate.

18. This latter observation was made most vigorously with regard to the bargaining unit proposed by the U.A.. In his submissions respecting the appropriate bargaining unit in the U.A. application, counsel argued that the effect of finding the bargaining unit proposed by the U.A. to be appropriate would be to "force the jurisdictional accord down the throat of the employer" by way of the certification process. Counsel stated that Ontario Hydro did not agree with the submission of both the U.A. and the P.W.U. that the terms of the jurisdictional accord reflected the historical practice of Ontario Hydro in assigning "plumbing and pipefitting" work - that the line of "160 hours" was not reflective of Ontario Hydro's practice whatsoever.

19. Counsel for Ontario Hydro also submitted that the argument by the U.A. that there was no admission in its jurisdictional accord that the work performed by the P.W.U. was "construction" work was, in reality, "smoke and mirrors". It was conceded that those words were never used, but that the division of work agreed to between those two unions definitely indicated that the P.W.U. had performed construction work historically. Going further, counsel submitted that Ontario Hydro's withdrawal of its earlier position that the P.W.U. agreement with Ontario Hydro was a bar to these applications for certification was based upon the acknowledgement by both the Labourers' and the U.A. that the P.W.U. did perform minor work in the nature of "construction". For the U.A. to take the position that its jurisdictional accord does not reflect that fact is inappropriate. Accordingly, counsel submitted that the most appropriate way to preserve the rights of the P.W.U. would be to recognize, in the bargaining unit description, the prior rights held by the P.W.U. in the sectors for which the U.A. seeks bargaining rights. That is, the certificates desired by the applicants ought to be subject to a "carve out" of the rights previously held by the P.W.U., as proposed by Ontario Hydro.

20. Counsel for the U.A. made certain submissions in response to these latter arguments. Counsel disputed that the jurisdictional accord as between the U.A. and the P.W.U. was not reflective of the existing jurisdictional lines, and stated that the two unions had "hammered out the closest and clearest approximation" of those lines. He agreed that the P.W.U. tradesmen had performed, on occasion, "construction" plumbing and pipefitting work. However, he submitted that any such work, when performed, was never performed within the scope of the collective agreement between Ontario Hydro and the P.W.U.. Accordingly, the P.W.U. and the U.A. could settle their jurisdictional accord by reference to the "bright line test" of 160 hours. Counsel also submitted that if Ontario Hydro withdrew its position regarding the "bar" on the basis of a misapprehension relating to the position of the U.A., that was not a factor that ought to have any bearing in these proceedings.

21. Finally, counsel for the Labourers' took issue with the submission made by Ontario Hydro that the parties ought to be permitted to "bargain" an extension of the collective agreements between them in the electrical power systems sector. Counsel noted that it is trite law that one cannot proceed to impasse on the issue of recognition and the scope of the bargaining unit. Effectively, counsel submitted, those individuals not covered by the EPSCA agreements in question would be precluded from representation. Accordingly, the proposition made by Ontario Hydro in this regard ought to be rejected.

IV. Decision of the Board

22. At the outset, we will dispose of the easiest issue raised in these proceedings. In our view, the exclusions in the bargaining unit descriptions respecting the bargaining rights currently held by the applicants in the electrical power systems sector ought to be effected by reference to the specific collective agreements rather than by reference to the sector itself.

23. The reason for such a conclusion is evident. Section 146(2) of the Act requires that, upon certification of the applicants by the Board, two certificates will issue. One of the certificates is to be confined to the I.C.I. sector of the construction industry. The other certificate is to encompass "all other sectors in the appropriate geographic area or areas". Presumptively, then, the latter certificate would encompass the electrical power systems sector of the construction industry.

24. However, the parties have already bargained certain rights of representation in the electrical power systems sector of the construction industry. These representation rights ought to be carved out of the second certificate. However, the full scope of these bargaining rights is uncertain, as the rights were achieved by way of voluntary recognition and not certificate. The EPSCA collective agreements binding Ontario Hydro and the U.A. and Labourers' respectively, may, or may not, encompass the entire electrical power systems sector. If they do not, excluding those bargaining rights from a certificate by reference to the sector itself would have the effect of excluding from representation those construction labourers and plumbers and pipefitters who fall beyond the reach of the EPSCA agreements, notwithstanding that it is evident that the intention of section 146(2) of the Act was to capture all of those employees within the certificate representing all other sectors of the construction industry other than the I.C.I. sector.

25. For obvious reasons, the suggestion that the parties be permitted to bargain any necessary extension of the EPSCA collective agreements is not an answer to this issue. For each trade, the statutory scheme requires that the second certificate grant bargaining rights for all sectors of the construction industry other than the I.C.I. sector, and the only way to ensure that the certificate has that effect is to exclude pre-existing rights in one or more of those sectors by making reference to the existing collective agreements providing those rights. Accordingly, the exclusion of the electrical power system sector bargaining rights held by the applicants will be effected by reference to the appropriate EPSCA collective agreement.

26. A far more difficult and policy-laden question is the appropriateness of the bargaining unit descriptions proposed by the applicants, particularly that proposed by the U.A.. We have considered quite carefully the arguments of the parties regarding the appropriateness of the bargaining units. We have also reviewed the case authorities provided by counsel. The decision of the Board in Alcan Aluminium Limited, [1997] OLRB Rep. June 305 deserves some specific reference, as it would appear that the structure of the bargaining unit proposed by the U.A. is premised on its understanding of the application of that decision.

27. Alcan Aluminium, like the instant case, consisted of two applications for certification. The applicants were Millwright Local 1410 and U.A. Local 221. Each desired a certificate from the Board which covered its tradespersons in the I.C.I. sector of the construction industry, and a second certificate covering its trade in all other sectors of the construction industry in Board Area 30. In both applications for certification, two locals of the United Steelworkers of America, and a local of the International Association of Machinists and Aerospace Workers intervened. Alcan Aluminium carried on business at three relevant locations for the purposes of the certification applications - Toronto, Bracebridge and Kingston.

28. The question of the appropriate bargaining unit was raised in both certification applications. The employer and the intervening unions argued that construction work was carried on in the various Alcan plants, and that to the extent that Alcan used its own employees to do that work at the three plants, the work was performed by employees represented by the unions under their respective collective agreements. The employer and the intervening unions submitted that the pre-existing bargaining rights held by the intervening unions ought to be "carved-out" from the applicants' bargaining rights. The applicants, on the other hand, argued that the intervening unions held no bargaining rights for construction employees, and merely because a collective agreement had been applied to work or employees could not establish those bargaining rights.

29. Ultimately, the Board accepted the argument put forth by the employer and the intervening unions. At pages 312 and 313 of the decision, the Board makes the following observations:

30. . ..the Act operates to preserve and protect established bargaining rights against erosion by employers, or incursion by other trade unions. Concomitantly, the Board's jurisprudence demonstrates a well-established practice of recognizing and preserving existing bargaining rights. In the result, the Act has (always) been interpreted and applied with a view to promoting labour relations peace and stability.

31. This is readily apparent from the Board's approach to applications for certification with respect to employees in workplaces or where bargaining rights have already been established (as demonstrated in decisions like Gottcon Contractors, supra, and The Georgian Building Corporation, supra). Where an employer already has one or more trade union collective bargaining partners, the established bargaining rights operate to prohibit or limit a subsequent application for certification with respect to employees to whom those bargaining rights apply...

32. Even where a trade union makes an application for certification with respect to employees who are unrepresented, it is sometimes necessary to make it clear that the bargaining unit applied for does not include employees who are already represented by a (usually another) trade union, particularly where the application is made outside of an open period. This is generally accomplished by including some "save and except" language, like that suggested by the intervening trade unions in these applications, in the bargaining unit description...

33. The Board has a discretion in dealing with bargaining unit description issues, whether these issues relate to questions of geographic scope or other matters. This is appropriate because it permits the Board, as an expert labour relations tribunal, some latitude in structuring appropriate bargaining units. However, the Board's discretion is directed by the Act, and the degree of discretion which the Board has is not the same in every case. It is axiomatic that the discretion which the Board has in a particular case depends upon the direction which the Act provides.

The Board then proceeded to discuss the distinction between construction and non-construction labour relations, and the differences in defining bargaining units in the construction industry from those in the industrial context generally. The Board went on to note that whether an agreement between an employer and a trade union extends bargaining rights held by a trade union to particular employees or particular work depends upon the mutual intent of the parties to that agreement.

30. The Board thereupon considered the specific circumstances before it:

31. Whether or not they would be construction employees on the Board's test, it is clear that employees covered under the Steelworkers' or Machinists' collective agreements ... sometimes perform construction work which in the construction industry is performed by plumbers, steamfitters (pipefitters) or millwrights under those collective agreements. It is apparent that the amount of construction work performed under these collective agreements, and the time spent performing construction work by employees in those bargaining units varies. However, it is also apparent that construction work in either trade is not performed on a daily basis, or at least not enough of it to make the employees who perform it into construction employees (on a daily basis) according to the Board's test.

The Board went on to analyze the extent of the construction work being performed at the three locations of the employer, and reached the following conclusions:

60. It is therefor [sic] apparent that Alcan and the Steelworkers have mutually intended that the collective agreements between them cover millwrights employed at the Foil plant in Toronto and at the Cable plant in Bracebridge. Similarly, it is apparent that Alcan and the Millwrights have mutually intended that the collective agreement between them covers plumbers, steamfitters (which are the same as pipefitters for purposes of the Act: see DE. Witmer Plumbing and Heating Limited, [1987] OLRB Rep. Oct. 1228), and millwrights at the Rolled Products Plant in Kingston.

61. In the result, the Board is satisfied that some "save and except" exclusionary language is appropriate, but only to the extent necessary to protect the Steelworkers and Machinists existing bargaining rights.

Of significance for the purposes of these proceedings, the Board went on to observe the following:

62. In that respect, in an application for certification the Board does not concern itself with issues of work jurisdiction. Applications for certification are about the representation of employees.... Undoubtedly, the acquisition of bargaining rights can have work jurisdiction implications for the employees, for the employer, and for any other trade union which holds bargaining rights for other employees of the employer, but these do not relate to any issue which it is necessary or appropriate for the Board to determine in an employee representation proceeding. On the contrary, work jurisdiction issues are appropriately dealt with under the jurisdictional dispute provisions of section 99 of the Act, and the process which has been specifically designed to deal with such issues ... This is why the Board describes both construction and non-construction bargaining units in terms of the employees in them rather than the terms of the work performed (except in the anomalous case of construction operating engineers).

In the result, the Board was satisfied that it was appropriate to include something in the bargaining unit description to preserve the Steelworkers' and Machinists' bargaining rights. The Board ultimately excluded from the bargaining rights awarded to the applicants the bargaining rights held by the intervening unions by reference to the specific collective agreements the latter unions had with Alcan.

31. In essence, and amongst other things, Alcan Aluminium stands for the proposition that, in certain limited circumstances (i.e. where the employer and a third party trade union have mutually agreed that a collective agreement will cover certain trades or work) it will be appropriate to exclude from an applicant's I.C.I. bargaining unit (and therefore the two certificates which may be granted by the Board) bargaining rights held by that third party trade union. Only in those circumstances will an exclusion of that nature be appropriate.

32. There is no direct evidence before us of a "mutual intent" of Ontario Hydro and the P.W.U. that their collective agreement cover construction labourers and journeymen plumbers, pipefitters and their respective apprentices. Each of the Labourers', the P.W.U. and Ontario Hydro assert that members of the P.W.U. have performed construction labourer, plumbing and pipefitting work under the Ontario Hydro/P.W.U. collective agreement. On the other hand, the U.A. has taken great pains to assert that the P.W.U. has never performed construction plumbing or pipefitting work under its collective agreement with Ontario Hydro. Presumably, then, an exclusion of bargaining rights reflected by the Alcan Aluminium decision would not be appropriate for inclusion in the bargaining unit if this were in fact so.

33. In the circumstances before us, we are satisfied that the collective agreement between Ontario Hydro and the P.W.U. was mutually intended to include "construction" labourer, plumbing and pipefitting work. Counsel on behalf of each concede that this is in fact the case. The jurisdictional accord as between the P.W.U. and the Labourers' also concedes that members of the P.W.U. have performed work of a construction labourer. Accordingly, each of the Labourers', the P.W.U., and Ontario Hydro agree that the work of a construction labourer has been performed by members of the

P.W.U..

34. The situation is not quite as clear with regard to the question of the performance of plumbing and pipefitting work under the Ontario Hydro/P.W.U. collective agreement, but a review of Appendix "A" to the Memorandum of Agreement as between the P.W.U. and the U.A. makes it clear that "construction work" has been performed by members of the P.W.U. under that collective agreement. Counsel described the Pipefitting Trade Jurisdiction Agreement represented at Appendix "A" as reflecting the existing trade lines as between the P.W.U. and the U.A.. A review of that document identifies, as work performed by members of the P.W.U., "minor repair", the concept of "minor" meaning "a total of 160 pipefitting tradesperson hours per project". It is trite law that work in the nature of "repair" is construction work, and not maintenance work. Accordingly, one can only conclude from its inclusion on the "P.W.U. side" of the Appendix, and the submission that the Appendix reflects the existing trade line demarcation as between the U.A. and the P.W.U., that the P.W.U. have performed "construction" plumbing and pipefitting work pursuant to the P.W.U./Ontario Hydro collective agreement.

35. Each of the parties to these proceedings has submitted that the bargaining rights held by the P.W.U. ought to be excluded from the bargaining rights, if any, obtained by the applicants. In all of the circumstances, it would appear appropriate to do so.

36. The next question to be answered, though, is how to effect that exclusion. Dealing first with the proposed bargaining unit description made by the U.A., is it appropriate to exclude the P.W.U. bargaining rights by excluding "persons performing P.W.U. pipefitting work in accordance with the Pipefitting Trade Jurisdiction Appendix "A" attached hereto and paid in accordance with the collective agreement between the P.W.U. and Ontario Hydro", and with the accompanying clarity note? In the circumstances, we do not agree that it is appropriate to do so.

37. As an initial observation, we have some sympathy with the purpose behind the inclusion of such a provision, with its explicit reference to a work jurisdiction agreement. The provision is intended to minimize, to the greatest extent possible, work disputes as between the U.A. and the P.W.U.. The Memorandum of Agreement also contains an arbitration process and various other provisions which would facilitate the resolution of disputes as between those same two parties. There is nothing inherently problematic about such trade agreements - they are relatively common in the construction industry and are a factor taken into account by the Board when determining a work assignment dispute under section 93 of the Act (now, of course, section 99 of the Labour Relations Act, 1995).

38. Notwithstanding the inherent worthiness of a trade agreement, however, one must question the incorporation by reference of such an agreement into the description of a bargaining unit. At the very least, one is immediately faced with the long-standing principle (reiterated by the Board in Alcan Aluminium Limited, supra, at paragraph 62) that claims relating to work jurisdiction ought not to be determined or resolved in representation proceedings.

39. The significance of this long-standing principle is highlighted by the facts of this case. The U.A. and the P.W.U. have, through negotiation, reached a trade agreement regarding work jurisdiction and have, as well, agreed upon a method of resolving those disputes as between them. But what about Ontario Hydro, the responding party to the U.A. application for certification? It certainly has not "bought into" the jurisdictional accord. It does not concede that the threshold of 160 tradesperson hours per project agreed to by the U.A. and the P.W.U. in any way reflects its current practice of assigning work as between members of the U.A. and members of the P.W.U.. Nor has it "bought into" the accord executed as between the P.W.U. and the Labourers'. However, the latter jurisdictional accord is markedly different, because it is not referred to in the bargaining unit proposed by the Labourers'. As Ontario Hydro is not bound by that document, and as there is nothing which "ties" Ontario Hydro in any way to that document, it is not as troubling for Ontario Hydro.

40. That is not the case with regard to the U.A. jurisdictional accord with the P.W.U.. The U.A. effectively asks the Board to incorporate the terms of the "Pipefitting Trade Jurisdiction Appendix 'A"' into the description of the bargaining unit. Appendix "A" states that the U.A. and the P.W.U. agree that Ontario Hydro "shall assign and perform" pipefitting work in a certain way. Would reference to Appendix "A" in the bargaining unit description unfairly tie the hands of Ontario Hydro?

41. As was pointed out by counsel during the course of argument, there is nothing inherently troubling by the fact that a certificate of the Board has the effect of "tying the hands" of an employer. By its very nature, any certificate has that effect - it can hardly be a defence to an application for certification that the work assignment options available to an employer post-certificate would be lessened. That being stated though, there is, in our view, something troubling about "tying the hands" of Ontario Hydro in a way defined by the U.A. and the P.W.U., when Ontario Hydro asserts that the demarcation line agreed to by the two unions does not accurately describe Ontario Hydro's historical work assignment line between the two trades. Quite simply, the U.A. and the P.W.U. ought not to be entitled to unilaterally define that line of demarcation for Ontario Hydro in the context of an application for certification.

42. Accordingly, we are of the view that the bargaining unit description proposed by the U.A. is not a bargaining unit which would be appropriate for collective bargaining. We do, however, consider the bargaining unit proposed by the Labourers' to be appropriate for collective bargaining, with one or two slight amendments. In our view, then, the following are appropriate bargaining unit descriptions in these two proceedings:

(a) Board File 2947-94-R

all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Ontario Hydro in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Ontario Hydro in all other sectors of the construction industry in the counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, save and except plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices employed under the P.W.U. collective agreement with Ontario Hydro, save and except plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices employed under the U.A. collective agreement with EPSCA, and save and except for non-working foremen and persons above the rank of non-working foreman.

(b) Board File 3010-94-R

all construction labourers in the employ of Ontario Hydro in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and all construction labourers in the employ of Ontario Hydro in all other sectors of the construction industry in the counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, save and except construction labourers employed under the P.W.U. collective agreement with Ontario Hydro, save and except construction labourers employed under the Ontario Allied Construction Trades Council collective agreement with EPSCA, and save and except for non-working foremen and persons above the rank of non-working foreman.

43. A few final observations. First, there were, during the course of argument, suggestions by both Ontario Hydro and the P.W.U. that their position regarding the "bar" argument (raised at the outset of the proceedings and expressly withdrawn during the course of the hearing) was dependent upon a certain bargaining unit description being achieved. As a result of this decision, one or both of Ontario Hydro and the P.W.U. may desire to give effect to this submission. We will not entertain any such argument at the resumption of hearings. When a party withdraws a position unequivocally, and without reservation, it is inappropriate, at a later time, to add a qualification to one's withdrawal of that position. Here, the withdrawals of the "bar" arguments were without qualification or reservation. Accordingly, it does not now lie for these parties to revisit that question.

44. Finally, the resolution of the bargaining unit issue leaves one final phase of these proceedings, namely the "list" issues. Ontario Hydro has raised these issues for determination. It is our view that, at this stage of the proceedings, Ontario Hydro ought to be particularizing its position regarding the various individuals alleged to be in the bargaining units described above.

45. Accordingly, we make the following directions and orders to facilitate the resolution of the remaining issues in dispute:

(a) Ontario Hydro is to identify, within two calendar weeks of the date of this decision, the names of those persons it asserts ought to be on the list of employees in each application for certification. A summary of the material facts upon which it intends to rely in support of its position is to be included with the list. Ontario Hydro is to file such a list and submissions with the Board, and to deliver same to the respective parties, within that two calendar week timeframe;

(b) Any party that asserts that an individual or individuals ought not to be on the lists of employees must file with the Board and deliver to the other parties written submissions providing the reasons for each of their challenges, and a summary of the material facts upon which they intend to rely, within two calendar weeks of receipt of the lists from Ontario Hydro;

46. Upon receipt of these submissions, the Board will make further directions regarding the resolution of the remaining issues in dispute.